93 Decision Citation: BVA 93-08244
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-52 131 ) DATE
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THE ISSUES
1. Entitlement to service connection for a low back
disorder.
2. Entitlement to service connection for a chronic right
leg disorder, to include residuals of a fracture.
3. Entitlement to service connection for a chronic throat
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, and his wife
ATTORNEY FOR THE BOARD
William J. Jefferson, Associate Counsel
INTRODUCTION
The veteran had active duty for training in the Idaho
National Guard from October 10, 1977 to January 21, 1978 and
active duty in the United States Army from October 1978 to
June 1980.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans' Affairs (VA) Boise, Idaho, Regional Office (RO).
By rating decision dated in November 1990 service connection
for a low back disorder, a right leg disorder, ventral
hernia scar, throat cancer, and hyperkeratosis of the vocal
cord was denied. The veteran was notified of the
determinations in November 1990. A notice of disagreement
was received in November 1990. A statement of the case was
issued in January 1991. A substantive appeal was received
in January 1991. A personal hearing was held at the RO in
March 1991.
During the March 1991 personal hearing, the veteran withdrew
the issues of entitlement to service connection for a
ventral hernia and hyperkeratosis of the vocal cord. A
decision by a hearing officer at the RO was rendered in June
1991, affirming the denials of service connection for a low
back disorder, a right leg disorder with fracture, and
throat cancer. A supplemental statement of the case was
issued in June 1991. A statement from the veteran's
accredited representative, dated in August 1991 was
associated with the claims folder. The case was received at
the Board in December 1991 and docketed in January 1992. An
informal brief dated in March 1992 was associated with the
claims folder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran argues that during service he sustained injuries
to his low back and he fractured his right leg. He also
argues that he has throat cancer which had its onset during
active service. He maintains that service connection for
the aforementioned disorders is warranted.
FINDINGS OF FACT
1. A low back disorder pre-existed active duty for
training.
2. The veteran received treatment for a complaint of low
back pain which had been present for about one year, in
October and November 1977 during active duty for training;
during active service, only a history of low pack pain was
reported; the pre-existing low back disorder did not undergo
an increase in basic chronic pathology during active duty
for training or active service.
3. The veteran received treatment for acute Achilles
tendonitis, muscle strain, and shin splints in the fall of
1977 during active duty for training; he reported a history
of leg cramps and a broken leg during active service; a
fracture of the right leg or any residuals is not shown in
either period of service.
4. A chronic right leg disorder is not shown.
5. The veteran received treatment for acute respiratory
infections, which included a sore throat, during a period of
active duty for training; a chronic throat disorder is not
shown either during active duty for training or active
service, and is first reported many years later.
CONCLUSIONS OF LAW
1. A pre-existing low back disorder was not aggravated
during a period of active duty for training or active
service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 1153, 5107
(West 1991); 38 C.F.R. § 3.306(a) (1992).
2. A chronic right leg disorder and a chronic throat
disorder were not incurred in or aggravated by active duty
for training or active service. 38 U.S.C.A. §§ 101(24),
1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b),
3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a). That
is, we find that he has presented claims which are not
implausible. We are also satisfied that all relevant facts
have been properly developed. 38 U.S.C.A. § 5107(a).
I. Aggravation of a Pre-existing Low Back Disorder
In an August 1977 National Guard enlistment report of
medical examination, the veteran indicated that he had a
history of low back pain when he lifted heavy objects. It
was reported that he had been told that he had an extra
lumbar vertebra. Possible transitional L6 vertebra was the
diagnosis. A lumbar scar was noted.
Service medical records show that in October 1977 he
received treatment for complaint of low back pain. It was
indicated that he had had a (back) condition prior to entry
into service, and that he had extra bone growth in his
spine. Muscular involvement of the left lower back muscle
was reported. An October 1977 service physical therapy
clinic entry revealed that the veteran's back pain existed
prior to service and it was of one year's duration. The
examination was essentially negative. Chronic low back pain
was diagnosed and exercises were recommended. A late
October 1977 physical therapy clinic entry reported
treatment for complaints of low back pain without new
trauma. It was indicated that straight leg raising was
positive for low back pain. There was marked tightness of
both hamstrings. The remaining findings were essentially
normal. Chronic low back pain was diagnosed.
A November 1977 entry reported a complaint of low back
pain. The veteran gave a history of recurrent back pain in
a January 1978 report of medical history. The physical
examination report was negative for any pertinent
pathology.
An October 1978 active duty report of medical history
revealed that the veteran had or had had recurrent low back
pain. The veteran indicated that he had three extra bones
in his back and when he tried to lift something, he had (low
back) shooting pain. For history it was recorded: Three
extra bones, lower spine, pain with heavy lifting, no
treatment. The October 1978 physical examination report, as
well as the veteran's June 1980 discharge physical
examination records, were negative for any complaints or
findings referrable to the low back. He was found qualified
for retention on active duty.
National Guard physical examination for enlistment in
January 1983 was negative for any pertinent pathology or
disqualifying defect.
On October 1990 VA examination, the veteran complained of
back pain every now and then on any provocation. The
physical examination was essentially normal. An X-ray of
the lumbosacral spine revealed no significant abnormality.
It was reported that there were somewhat ambiguous lumbar
levels, with four lumbar-type segments and possible
hypoplastic ribs at L1.
The veteran testified that he did not know that he had
something wrong with his back until his first physical
examination during service. March 1991 hearing transcript,
hereinafter T., at 8. He reported that he had back pain
during service, for which he received treatment. T. 8. He
stated that when he received treatment during service, he
was informed that there was nothing that could be done for
him. T. 8. The veteran averred that he continued (basic)
training which involved jumping in and out of tanks. T. 9.
He reported that medication for his back complaints
consisted of deep heat rub. T. 9. The veteran reported
that he continued to have low back pain. T. 9. He averred
that he did not seek treatment for his low back pain when he
was discharged. T. 9.
The Board has reviewed the entire evidentiary data of
record, and concludes that the preponderance of the evidence
is against the veteran's claim for a low back disorder.
It is pertinent to note that service connection may be
granted for disability resulting from disease or injury
incurred in or aggravated while performing active duty for
training, as well during a period of active service. 38
U.S.C.A. § 101(24), 1131. Additionally, the statutory
provisions concerning the presumption of soundness are
limited to active service, and therefore do not apply in
this case.
The evidence shows that the veteran reported pre-existing
low back pain and lumbar anomalies at active duty enlistment
as well as during active duty for training. After entrance
into active duty for training he received treatment for low
back pain which had begun one year earlier. Despite
diagnoses of chronic low back pain, the service medical
records do not reveal any low back injury or trauma
necessitating the low back treatment, and the veteran was
treated conservatively.
There is clear and unmistakable evidence of a pre-existing
low back disorder and the presumption of soundness
concerning the veteran's period of active service is
rebutted. However, during his period of active service,
beginning in October 1978, the service medical records,
including those at discharge, are limited to a history of
low back pain and do not reveal any treatment for the low
back. Additionally, there is a dearth of post-service low
back pathology.
It is pertinent to note that temporary or intermittent
flare-ups during service of a pre-existing injury or disease
are not sufficient to be considered "aggravation in
service", unless the underlying condition, as contrasted to
symptoms, is worsened. Hunt v. Derwinski, 1 Vet.App. 292
(1991).
The Board concludes that the evidence of record, which is
essentially limited to some low back complaints and
treatment shortly after the veteran's entry into active duty
for training, along with no evidence of low back treatment
or findings either during a subsequent period of active
service or thereafter, does not suggest or indicate an
increase in severity of the pre-existing low back pain
during the veteran's periods of either active duty for
training or active service. It appears that the low back
pathology during active duty for training was due to
temporary or intermittent flare-ups and not aggravation of
the pre-existing disorder.
The Board has considered the veteran's testimony from the
March 1991 personal hearing. We find that the veteran's
testimony is outweighed by the evidentiary data of record,
particularly clinical findings, and it does not show or
establish an increase in severity of the veteran's
pre-existing low back disorder during service.
Therefore, we find that the preponderance of the evidence is
against the veteran's claim, and service connection for the
pre-existing low back disorder is not warranted.
II. A Chronic Right Leg Disorder, Including Fracture
The veteran's August 1977 active duty for training
enlistment physical examination records do not reveal any
pertinent data.
Service medical records reveal that in October 1977 the
veteran received treatment for a cramp in the right
gastrocnemius of one week's duration. It was reported that
there was no edema. Pain on range of motion was reported.
The diagnosis was muscle pull. He was treated
conservatively. Service clinical entries from November 1977
reveal conservative treatment for a painful (right) calf, a
tender right Achilles tendon, and shin splints. Chronic
right Achilles tendonitis was diagnosed. He was issued
crutches. The veteran received conservative treatment for
Achilles tendonitis in December 1977.
A January 1978 report of medical history revealed that the
veteran had or had had cramps in his legs and broken bones.
It was reported that he had had occasional leg cramps,
treated in part by a private physician. A contemporaneous
physical examination report was negative for any pertinent
findings or complaints.
An October 1978 active duty physical examination report was
negative for any complaints or findings concerning the right
leg. The remainder of the veteran's active service medical
records, including physical examination records and
discharge physical examination reports, are negative for any
complaints or findings with regard to a right leg disorder,
including a right leg fracture.
In a January 1983 report of medical history for enlistment
into the National Guard, the veteran reported that he had
had an incomplete fracture of the right lower leg at
age 18. The physical examination report was negative for
any complaints or findings regarding the right leg.
An October 1990 VA physical examination revealed no
abnormalities of the right leg. An X-ray of the right leg
was negative. Fracture, right leg, healed, was the
diagnosis.
The veteran testified that while marching during basic
training, he stepped on a rock, and he thought that he had
twisted his ankle. T. at 11. He reported that X-rays which
were taken revealed a right leg fracture. T. 11. He
averred that a cast was placed on the right leg. T. 11. He
stated that the cast was on his leg for six weeks, and that
prior to service he had not broken his right leg. T. 12.
The veteran averred that since service he had leg cramping
every now and then. T. 13.
After a review of the evidentiary data of record, the Board
concludes that the preponderance of the evidence is against
the veteran's claim for a right leg disorder, to include
residuals of a fracture.
The veteran's medical records from a period of active duty
for training reveal conservative treatment for a muscle pull
of the right gastrocnemius, right Achilles tendonitis, and
shin splints, from October through December 1977. A right
leg fracture was not reported during the veteran's period of
active duty for training. Additionally, no right leg
complaints, including a right leg fracture were noted during
the veteran's period of active service beginning in January
1978. In 1983 a history of a right leg fracture, at age 18
was reported by the veteran, but no objective right leg
pathology was indicated, nor was any pathology shown in
post-service clinical records, including X-rays.
Based on the evidence of record, the Board is compelled to
conclude that a chronic right leg disorder including a right
leg fracture was not shown during the veteran's period of
active duty for training, active service, or post-service.
We find that the right leg ailments shown during the
veteran's period of active duty for training were acute and
resolved without residual disability. The veteran has
maintained that he sustained a right leg fracture during
active duty for training, but the clinical data is negative
for a right leg fracture or any residuals thereof. In
essence, a chronic right leg disorder was not shown during
or after service. The Board has considered testimony from
the March 1991 personal hearing, but we find that the
veteran's testimony is outweighed by the clinical data of
record.
Therefore, the preponderance of the evidence is against the
veteran's claim, and service connection for a chronic right
leg disorder, to include residuals of a fracture, is not
warranted.
III. A Disorder of the Throat
The veteran received treatment for complaints of a sore
throat during active duty for training in October and
November 1977. The diagnoses were acute respiratory
disorder and pharyngitis. He was treated with warm salt
water. The veteran's active duty for training discharge
physical examination report is negative for any complaints
or findings referrable to a throat disorder.
The veteran's active service medical records, including a
discharge physical examination report, are negative for any
complaints or findings referrable to the throat.
Private clinical records from December 1983 reported
treatment for a sore throat. Acute pharyngitis, probable
strep, was the diagnosis.
VA clinical records reveal treatment in February and March
1990 for a variety of respiratory symptoms, including sinus
drainage, a productive cough with blood tinged sputum,
hoarseness, right neck pain, and shortness of breath. It
was indicated that the symptoms had existed for two months.
The diagnoses were varied, including flu syndrome,
bronchitis, and questionable pneumonia. A chest X-ray
revealed atelecstasis and infiltrate in the left lung base.
A bronchoscopy performed in March 1990 revealed a right
vocal cord lesion. Lab results from bronchial washings
revealed a background of scattered squamous cells and
macrophages, but no neoplastic cells. A July 1990 VA
clinical entry revealed that the vocal cord lesion was
hyperkeratosis.
A VA physical examination was performed in October 1990. An
evaluation of the throat showed some injection secondary to
apparent smoking. It was reported that the veteran
indicated that he had been told he had leukoplakia rather
than cancer. The diagnosis was throat cancer, no tumor
noted, probably being treated elsewhere in the hospital.
The veteran testified that during service while in Germany,
he had recurrent sore throats. T. 2. He reported that at
the time he smoked a 1/2 pack of cigarettes per day. T. 2.
He averred that he had two lumps in his throat the size of a
pencil end. T. 3. He stated that the problem occurred
every month and a half. T. 3. The veteran averred that he
received treatment for his throat problems after service, in
1982 and 1983. T. 4. He testified that currently he had
leukoplakia in the voice box and left lung. T. 5. He
reported that he had been informed of the leukoplakia by VA
hospital employees. T. 5.
The Board has reviewed the entire evidentiary data of
record, and concludes that the preponderance of the evidence
is against the veteran's claim for entitlement to service
connection for cancer of the throat.
The evidence shows that the veteran was treated during
active duty for training for an upper respiratory disorders,
and pharyngitis. The active duty for training release
physical examination, as well as service medical records
from his period of active service are negative for any
complaints or findings referrable to a disorder of the
throat, including carcinoma.
Subsequent to service, in 1983, he was treated on one
occasion for acute for pharyngitis; and in 1990, many years
after service, hyperkeratosis of the vocal cord was
reported. It is pertinent to note that leukoplakia, a white
mucosal lesion which cannot be removed by simply rubbing the
surface, sometimes referred to as hyperkeratosis or
leukokeratosis, a disease common in smokers has been
diagnosed. The disorder at times is representative of early
squamous cell carcinoma, but is not shown to be cancerous or
malignant here. Current Medical Diagnosis & Treatment 139
(Steven A. Schroeder, M.D., and Marcus A. Krupp, M.D., eds.,
30th ed. 1991). Moreover, in the case at bar, leukoplakia
was not shown during the veteran's period of active duty for
training, active service, or until many years later.
Therefore, we conclude that the veteran received treatment
during a period of active duty for training for acute upper
respiratory infections which included a sore throat. A
chronic disorder of the throat was not shown during active
duty for training or active service and was first shown in
1990, too remote in time to be related to the veteran's
period of active duty for training or active service. The
preponderance of the evidence is against the veteran's claim
and service connection for a chronic throat disorder is not
warranted.
THE ORDER
Service connection for a low back disorder is denied.
Service connection for a chronic right leg disorder, to
include residuals of a fracture is denied.
Service connection for a chronic throat disorder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) J. E. DAY
SAMUEL W. WARNER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
(CONTINUED ON NEXT PAGE)
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.